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Most agreements in the technology arena provide for some form of indemnification, usually for infringement claims made against a recipient of services or technology by third parties claiming some intellectual property rights in the subject of the services or technology agreement or on some activities of the licensor/provider or licensee/recipient of the services. The following is a paragraph addressing the procedural aspects of such indemnification: SAMPLE CLAUSE: Indemnification Procedures. The indemnities set forth in Sections ____, ____, and ____ hereof will not apply to the extent the party claiming the indemnification was responsible for giving rise to the matter upon which the claim for indemnification is based and will not apply unless the party claiming indemnification promptly notifies the other of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other full opportunity to control the response thereto and the defense thereof, including without limitation any agreement relating to the settlement thereof. The indemnified party’s failure to promptly give notice shall affect the indemnifying party’s obligation to indemnify the indemnified party only to the extent the indemnifying party’s rights are materially prejudiced by such failure. The indemnified party may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice. If after investigation of the facts known at the time, the indemnifying party disputes its obligation to indemnify the other party, (i) the parties shall cooperate to ensure that timely and adequate defense of the claim is provided, and (ii) all costs initially shall be shared equally; provided that all costs shall be borne by the party against whom the matter is resolved or as otherwise agreed. Any dispute regarding this provision shall be settled by arbitration as set forth in Section ____. This sample clause is intended to serve solely as an exemplar and may need to be modified to conform to the legal requirements of your jurisdiction. It in no way constitutes legal advice. Susan Kent is an attorney at Brown Raysman Millstein Felder & Steiner LLPin New York.

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